September 30, 2011
IL Clarifies Duty Analysis, Post-Sale Duty to Warn in Products Case
In Jablonski v. Ford Motor Co., the Illinois Supreme Court held that duty analysis in a negligent-product- design case encompasses a risk-utility balancing test in which compliance with industry standards is relevant, but not dispositive. The court further refused to adopt a post-sale duty to warn for a product not defective at the time of manufacture. The opinion (pdf) is here.
Thanks to DePaul's Mark Weber for the tip.
September 28, 2011
Indiana Stage Collapse Leads to Lawsuit, Challenges
Most people know that a stage collapsed during the Indiana State Fair, killing several people. Not surprisingly, survivors of the victims have filed suit. One suit challenges both Indiana's $5 million total cap on damages in claims seeking damages from the state and seeks to make damages available for surviving same-sex partners. (Indiana does not recognize same-sex marriage.)
Intermediate Appellate Court Upholds Damages Cap in California
I missed it earlier this month, but an intermediate appellate court in California upheld a $250,000 cap on noneconomic damages in medical malpractice claims.
Heymann on Interests in Reputation
Laura Heymann (W&M) has posted to SSRN The Law of Reputation and the Interest of the Audience. The abstract provides:
Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task re-served to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or firm holding the reputation and the defendant accused of having unlawfully harmed that reputation. This framework leads to particular conceptions of the reputational interests, such as from a property or dignity perspective, and of the countervailing, often First Amendment–related, interests of the defendant. But the community that constructs one’s reputation also has an interest in the soundness of a reputation’s foundation so that future uses of others’ reputations will be effective. A more complete conception of reputation, therefore, should take such community interests into account.
September 27, 2011
NJ Teen Sues NYC for Negligence
A New Jersey teen, injured after jumping the fence at the new High Line park, has filed a notice of claim against New York City. The notice alleges that city workers were negligent in locking the teen into the park when the park closed at 11:00 p.m. NY Daily News has more.
September 26, 2011
CALL FOR PAPERS: Second issue of Scientia Juris (Metz Law School Journal)
Francois-Xavier Licari sent the following announcement:
Legal Maxims in the 21st Century – Law in Books or Law in Action?
“Hence, in all civilized nations, we always witness the formation, alongside the temple of enacted laws under the legislator’s supervision, of a repository of maxims, decisions, and doctrinal writings which is daily refined by the practitioners and their clashing debates in court, which steadily grows as all acquired knowledge is added to it, and which has always been regarded as the true supplement of legislation”.
- Translation of J.-E.-M. Portalis in Alain Levasseur, ‘Code Napoleon or Code Portalis?’ (1968) 43 Tulane Law Review 762, 769-70.
This famous quotation of Portalis expresses in a brilliant phrase that statutes are not the only sources of law and that alongside them are maxims or adages, as well as judge-made law and doctrine.
The second issue of Scientia Juris will focus on the most fascinating of these ‘supplements’ of the statutory law, one whose very existence actually seems to give reason to the supporters of the Historical School: the maxims.
Whether they are principles of interpretation or vehicles of a substantive rule, they are abundant in the treatises. They seem to exist in all legal systems (continental law, common law, religious law, etc.). The judge sometimes relies on them to base his decision. The most famous of them have been the subject of scholarly study. Their legal strength seems well established. They are probably one of the last islands of customary law. However, at the end of the first decade of this century, it seems that a reexamination of this question is worthwhile. The maxims still contain many mysteries.
What maxims apply in real life from the law: do they have normative importance that make legal traditionalists jealous of their knowledge? Do they still have a place in a world saturated with legislation as regulation? Do they constitute one of the last havens of stability among ever-changing standards? Is this permanence through their generality? Is this imprecision compatible with legal certainty? How otherwise explain the strength of the expression that they show?
And for those that exist in multiple families of law or in different jurisdictions, how have they traveled? Does a similar expression signify a similarity in meaning and scope? What about maxims in mixed jurisdictions (Louisiana, Quebec, Malta, Israel, etc.): does their introduction into a hybrid system lead to a separation from the original?
This list is far from complete; numerous other problems and points could be addressed as well. Similarly, the bibliography ... is only meant as a research tool; consultation of documents mentioned here is thus neither required nor objectively indispensable. The papers sought should put forth and defend ideas, hypotheses, models or theories, but not simply present data or already published research work in a more or less descriptive way. Submissions shall be sent as an Open Office or Word file to the editors by March 30, 2012. There is no minimum or maximum length. Our working languages are French, English, German, and Spanish. The Metz Law School Journal is peer-reviewed.
Note that contributors can also submit papers outside of the focus of this call on any comparative or transnational subject. All submissions should be sent to firstname.lastname@example.org or email@example.com.
More information is available at Juris Diversitas.